File 2: Opinion of Member Armendariz

[ v59 p89 ]


Dissenting Opinion of Member Armendariz:

      I respectfully dissent from the decision reached today, which finds that the Agency "has precluded its ability to sustain its burden of persuasion" solely as a result of its failure to include in its exceptions the full text of disputed contract provisions. See Majority Opinion, slip op. at 6. In my view, the Agency's exceptions comport with the regulatory filing requirements and, as such, denial of the exceptions on the stated basis is improper.

      Under § 2425.2 of the Authority's Regulations, exceptions that are filed with the Authority must be self-contained documents. In particular, § 2425.2(b) requires that an exception set forth "[e]vidence or rulings bearing on the issues before the Authority[.]" Further, § 2425.2(c) requires the excepting party to present "[a]rguments in support of the stated grounds, together with specific references to the pertinent documents and citations of authorities[.]"

      In its exceptions, the Agency argues that the award is deficient as contrary to law because it enforces specific provisions of the parties' agreement in a manner that is inconsistent with various management rights. The exceptions point to the portions of the award in which the Arbitrator cited extensively from Clauses IV and V of the parties' Regional Hydropower Trainee Program Agreement. In addition, the exceptions quote parts